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Stategraft refers to the practice by which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.”1 Public officials engaging in stategraft utilize these financial resources to replenish public coffers and often target segments of the population poorly positioned to fight back.2 Arguably, there are few populations more vulnerable to financial extraction than incarcerated individuals. Thus, a prime example of stategraft at work is that of “pay-to-stay” fees or the practice of states and localities charging incarcerated individuals for the cost of their incarceration. Legal scholars have challenged the constitutionality of these practices as violating the Due Process Clause of the Fourteenth Amendment, and the Excessive Fines Clause of the Eighth Amendment. Our research has focused primarily on states that utilize civil lawsuits to collect these fees, such as Illinois and Michigan, as particularly egregious examples of stategraft.

After the Supreme Court’s decision in Biden v. Nebraska, we now have three interpretations of the major questions doctrine. Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Amy Coney Barrett have each offered different justifications for the doctrine and different ideas about how it should operate. By examining the Supreme Court’s most recent “major questions” cases, this Essay traces the origins, justifications, and operations of the three different approaches.

Stategraft, a term coined by Professor Bernadette Atuahene, occurs when governments and government actors supplement their funding by illegally charging individuals. This illegal extraction can be intentional or unintentional, but its impact remains the same: a systemic funneling of funds that belong in the hands of residents into government pockets. Former U.S. Marine Stephen Lara’s case is an instance of alleged stategraft because the practice of ‘equitable sharing’ between state and federal agencies resulted in the allegedly illegal seizure of thousands of dollars from Mr. Lara by the state agency.

Twenty-five years ago, in Morley-Murphy Co. v. Zenith Electronics Corp., the Seventh Circuit warned that courts should not construe the Wisconsin Fair Dealership Law (WFDL) to authorize lost-profits damages arising from sales anticipated outside of Wisconsin, lest doing so raise constitutional concerns under the so-called dormant Commerce Clause. Some commentators and litigants have questioned the basis for this warning. Even though no state or federal court has ever fully adjudicated the issue, courts have continued to heed the Morley-Murphy warning.

The U.S. Supreme Court’s recent decision in National Pork Producers Council v. Ross should trigger reconsideration of the Seventh Circuit’s past suggestion. The Ross decision reaffirms the centrality of an antidiscrimination principle to dormant-Commerce Clause doctrine and clarifies that, absent a showing of purposeful discrimination against out-of-state businesses, the dormant Commerce Clause should not prohibit enforcement of the WFDL, even beyond the borders of Wisconsin.

Work at the intersection of blockchain technology and law represents a highly interdisciplinary area of inquiry. Often, researchers, law-makers, lawyers, and other stakeholders unnecessarily debate issues because of linguistic misunderstandings. As the third of four studies examining the impact of clashes of linguistic meaning on law and policy around emerging technologies, this Essay uses smart contracts as a case study to demonstrate the real legal harm that arises from a failure to communicate. Specifically, this Essay uses techniques from corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates as to whether the law should “accommodate” smart contracts. This Essay’s approach also further contributes evidence that corpus linguistics might be particularly effective as a tool for identifying linguistic ambiguities before they are embedded in law, rather than as a tool for resolving ambiguities after the fact. In the smart contract context, resolving such ambiguities early frees law to focus on the interesting and new issues the technology actually presents, rather than ineffectively future-casting for a use case most of industry does not actually seek to develop.

We spend large parts of our days on screens. Often more than we intend to. Screen time has increased steadily for over a decade, even before the Covid-19 pandemic. This is no coincidence. Reports leaking from Silicon Valley revealed that tech companies used manipulative designs to extend users’ time on screens. The internet economy’s business model relies on extending user time online to collect more data and target more advertising at users.

This Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies. Specifically, it identifies three factors that can obstruct the creation of meaningful windows of opportunity: (i) the invisibility of the technology; (ii) rapid entrenchment of norms and business interests; and (iii) social and institutional resistance to early intervention. The article also offers insight into how the occurrence of mega-historical events can reopen windows of opportunity by shaking up entrenched norms and practices.

The Article sheds light on how a window of opportunity to regulate addictive technologies failed to originally materialize, while re-opening later. First, the technology design that made screens addictive was invisible. As a result, users did not notice that their time online was gradually extended. By the time that public reports raised awareness of the technology addiction and overuse problem, both user norms and business interests were deeply engrained. Screens permeated practically every aspect of everyday lives. And, the primary business model of the internet economy relied on maximizing user time. Second, U.S. regulators generally resist early intervention, particularly of information technology and the Internet. Unsurprisingly, they opted for a wait-and-see approach in addressing technology overuse. Finally, the Article argues that the Covid-19 pandemic was a mega-historical event that created a window of opportunity to tackle the technology overuse problem. While the pandemic exacerbated the problem by significantly increasing screen time, it also made the technology visible. People realized how much time they spent on screens and how it affected them. This realization, coupled with increasing scientific evidence of the harms of technology overuse, created a window to regulate addictive technologies.

What does it mean for technology to disrupt law? Several possibilities come to mind. The first is that disruption refers to reshuffling some feature of the prevailing social order, destabilizing the balance of power and rights under prior law. Social impacts like these are instrumental to legal disruption—they often precipitate legal action to reverse or entrench the new status quo—but focusing on social impacts tells us little about the role or response of law itself.

The second possibility is disruption in the sense of challenging and changing substantive legal doctrine. This is perhaps the most popular and intuitive usage, and certainly a core concern for legal scholars. To define disruption this way, however, sweeps in too much. Change is an expected feature of a functional legal system rather than an indicator of anything remarkable. One might try to reserve the disruption label for particularly sudden changes or difficult doctrinal problems, but this solution invites further line-drawing questions. This framing of legal disruption is also incomplete: it begs for an account of why some doctrinal challenges prove more difficult than others.

This essay introduces a third possibility grounded in institutional analysis. By this account, legal disruption arises when technological change presents problems that are difficult to resolve through standard processes of making, enforcing, and updating the law. It arises fundamentally from the mismatch between the questions presented and the capabilities of existing legal institutions along the dimensions of authority, competence, and legitimacy. This account of disruption provides a schema for understanding how the difficulty of resolving techlaw problems extends beyond questions at the level of doctrine.

In this short comment, I raise two concerns regarding the implementation of Professor Krishnan’s model. The first is that the LODE model’s analogy to the discretionary interlocutory appeal is imperfect, and the imperfection is not merely technical, but rather involves the very heart of the reason for such interlocutory appeals: it is difficult to see how the LODE model will actually produce appellate rulings that could potentially shorten or terminate the underlying hearing. Instead, the LODE model seems likely only to create delay while the appellate court decides, based on an incomplete record, whether the rest of the immigration hearing will involve record development by the immigration judge.

The second concern is that the LODE model puts the appellate court into the position of having to decide (again, on an incomplete record) whether the noncitizen’s lawyer is inept or incompetent. Such a ruling could have far-reaching implications on any potential ineffective assistance of counsel claim brought by a noncitizen who loses at the hearing.

The University of Wisconsin’s James Willard Hurst was arguably the most significant legal historian in the United States. Hurst not only launched the so-called “new” legal history as an alternative to traditional constitutional narrative, but he also founded the interdisciplinary field of “law and society” more generally. And Hurst is most famous for some of his more general observations about the relationship between economic development and the growth of American law. As Lawrence Friedman put it, “[O]n the general question of the relationship between law and the economy, the pioneer work of J. Willard Hurst is still a fundamental starting point. . . .” Much of that work concerned the nineteenth century and law’s role in what Hurst talked about as “the release of creative energy.”